Friday, June 12, 2009

The power of suggestion [updated]

Apparently if you play Donny Osmond’s ‘Puppy Love’ backwards it sounds like he’s singing ‘Kill for the Devil, sinners,’ if you play the Beatles’ song 'I’m So Tired’ backwards it tells you Paul is dead. And if you play Led Zeppelin’s ‘Stairway to Heaven’ backwards (which, let’s be fair, could hardly be worse than playing it forwards), it is supposed to say “Here's to my sweet Satan. The one whose little path would make me sad, whose power is Satan. He'll give those with him 666. There was a little toolshed where he made us suffer, sad Satan." Or something like that.

Some people, frankly, will hear something in anything.

Which brings us to the lastest attempt to hear something out of nothing: the David Bain “heavy breathing” tape. I have it on good authority from some of the world’s most highly-paid experts (i.e., this bloke down the pub told me) that if you play it backwards it sounds like he’s quoting the words to the Macarena. Or is it the Birdy Song. Either way, this bloke swears it’s true.

Which, to be blunt, all makes about as much sense as the theory that he’s saying “I shot the prick” in between hyperventilating. The idea is about as dumb as the decision to exclude it from the trial.

UPDATE: Leighton Smith was asking on his show this morning a question that’s occurred to many people: How come the defence was allowed to present frank speculation about Robin Bain, about Laniet Bain, about her supposed sex life their supposed relationship, but the prosecution appears to have had so much of their evidence ruled out – evidence such as this tape, for example, and the evidence of school mates that a young David had devised a plan to use his paper round as an alibi.

I think the difference here is the rule on “hearsay evidence,” which is that assertions about what someone else might have said are generally inadmissible for the very good reason that what they report as being said was not presented as evidence was not made under oath, and is unable to be cross examined. Witnesses therefore are enjoined to deliver evidence only on what they know directly – as a High Court judge once explained it to a witness, “Is it something you saw, or something that you’ve read.” If it’s neither, then it’s out.

It’s on this basis presumably that what David was supposed to have said when he was a youngster is ruled inadmissible, since it’s a direct example of hearsay – and may be just one reason that David was reluctant to go into the witness box himself, since this is the sort of thing the prosecution could question.

Now, much of the speculation presented by David Bain’s defence team falls into this category too – most of it being evidence of what Laniet told friends, or “work colleagues,” or dairy owners, or people she passed in the street. But since Laniet is what’s called “an unavailable witness” – one whose testimony can’t be presented since they’re not around to answer questions – then the stuff she’s supposed to have said falls under the “hearsay exception” and can therefore be presented to the court.

It’s said that dead men tell no tales. But it could also be said that any defence lawyer worth his salt can easily fix that.

6 Comments:

Loathe as I am to give any more brain-processing-time to the whole Bain thing, I'm not sure I agree that it was stupid to exclude it.

As you said "Some people, frankly, will hear something in anything", even moreso when it's suggested to them first.

In the same way that it's silly to take the stand oneself in one's own defence, as one can only be incriminated, I suspect this pretty feeble "evidence" could only have been used in one way. It would be suggested what was said, and from that point on, that's all anyone would be able to hear in it.

Is there such a thing as biased evidence? Can a fact be biased? Probably not, but this comes close, since the "evidence" combined with the power of suggestion forms a new bit of evidence which would supplant the original in the minds of anyone who heard it.

As far as I am concerned, withholding any evidence from a jury makes a mockery of the jury system.We might as well let whoever decides what is and isn't admissible rule on the whole case.Juries are trusted (without any intelligence testing, review of qualifications or any other measure or their abilities) to decide on the most complex of financial fraud cases or to reach verdicts where a whole case turns on esoteric legal technicalities. Surely they can be trusted to carefully consider whether some recording gasping sounds are persuasive evidence.

The point that appears to be overlooked in this commentary is that the references to Laniet & Robin are not a criminal accusation. But a reflection on the failure of the police to investigation a potential motive on Robin's part.

The police did NOT investigate this (alleged) motive.

The defence argue that in the absence of such investigation leaves reasonable doubt on the probability of Robin or David being the killer.

So I see the admissability decisions as being consistently applied by the court.

Greig - I'd play the tape and let it speak for itself.The prosecution can claim he said "I shot the prick" and the defence can claim he said "I love Bambi".The jury can make up their mind which interpretation they favour, if any.

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Comments on this post

The power of suggestion [updated]
Loathe as I am to give any more brain-processing-time to the whole Bain thing, I'm not sure I agree that it was stupid to exclude it.

As you said "Some people, frankly, will hear something in anything", even moreso when it's suggested to them first.

In the same way that it's silly to take the stand oneself in one's own defence, as one can only be incriminated, I suspect this pretty feeble "evidence" could only have been used in one way. It would be suggested what was said, and from that point on, that's all anyone would be able to hear in it.

Is there such a thing as biased evidence? Can a fact be biased? Probably not, but this comes close, since the "evidence" combined with the power of suggestion forms a new bit of evidence which would supplant the original in the minds of anyone who heard it.

Good call, I think.
As far as I am concerned, withholding any evidence from a jury makes a mockery of the jury system.We might as well let whoever decides what is and isn't admissible rule on the whole case.Juries are trusted (without any intelligence testing, review of qualifications or any other measure or their abilities) to decide on the most complex of financial fraud cases or to reach verdicts where a whole case turns on esoteric legal technicalities. Surely they can be trusted to carefully consider whether some recording gasping sounds are persuasive evidence.
Fair point, but you'd have to be careful to present it impartially. How could you do that in this case?
The point that appears to be overlooked in this commentary is that the references to Laniet & Robin are not a criminal accusation. But a reflection on the failure of the police to investigation a potential motive on Robin's part.

The police did NOT investigate this (alleged) motive.

The defence argue that in the absence of such investigation leaves reasonable doubt on the probability of Robin or David being the killer.

So I see the admissability decisions as being consistently applied by the court.

Andrew
I forget who it was, but there is a sketch where someone plays one of these records backawrads, and you can hear the words "You've gone and buggered your stylus" or words nto that effect.
Greig - I'd play the tape and let it speak for itself.The prosecution can claim he said "I shot the prick" and the defence can claim he said "I love Bambi".The jury can make up their mind which interpretation they favour, if any.